The Place of Pro Bono and Legal Aid in the Kenyan Legal Profession

Leave a Comment / News / By
  1. Pro bono work and legal aid play significant roles in the Kenyan legal profession, contributing to access to justice and the provision of legal services to those who cannot afford them. Kenya as a country is a democratic country with a constitution that enshrines the Bill of Rights. This document is the supreme law of the country and was achieved after years of fight for liberation. It is therefore clear that pro bono and legal aid in Kenya is intertwined with the country`s legal development and struggles for justice.
  2. While formalized legal aid structures emerged more prominently in the latter half of the 20th century, informal mechanisms for providing legal assistance have deep roots in Kenyan society. The history of pro bono and legal aid in Kenya reflects the country’s evolving legal landscape and ongoing efforts to promote access to justice for all citizens, regardless of their socioeconomic status or background. These initiatives continue to be vital in addressing systemic inequalities and advancing the rule of law in Kenya.
  3. Before Kenya gained independence from British colonial rule in 1963, access to justice was limited, particularly for indigenous Kenyans. Legal representation was often reserved for the privileged elite, mainly Europeans and wealthy Asians. Indigenous Kenyans faced systemic discrimination and had limited access to legal services. This led to the emergence of legal aid organizations that started the fight for liberation.
  4. Following independence, there was a growing recognition of the need to address inequalities in access to justice. Legal aid organizations and initiatives began to emerge, often spearheaded by civil society groups and international organizations. These efforts aimed to provide legal assistance to marginalized communities, including landless peasants, women, and minorities.
  5. The post-independence period saw significant legal reforms aimed at building a more inclusive and equitable legal system. The Kenyan government introduced policies and legislation to promote access to justice and legal representation for all citizens. Legal aid provisions were included in the Constitution and subsequent laws to ensure that vulnerable populations could access legal services. However, this was not enough and needed the intervention of NGOs to provide financial and technical support to this important docket of the justice sector.
  6. Non-governmental organizations (NGOs) and nonprofit organizations played a crucial role in advancing legal aid services in Kenya. These organizations, such as the Kenya Legal and Ethical Issues Network (KLEIN) and the Kituo Cha Sheria (Legal Advice Center), provided free legal assistance, education, and advocacy to underserved communities. NLAS was then formed under the Office of the Attorney General and is benefiting from the European Union funding under a program called PLEAD; Programme for Legal Empowerment and Aid Delivery.
  7. The process of developing the legal framework on access to justice begun in May 1998 when the Attorney General set up the Legal Aid Steering Committee comprising government departments (Judiciary, State Law Office, Probation and Aftercare, Children’s and of Prisons), the Kenya National Commission on Human Rights and representatives of civil society organizations (ICJ-K, FIDA-K, PLI and LSK). The said committee called for an urgent need for a national legal aid scheme and identified possible model of legal aid delivery in Kenya. In 1999 the said committee commissioned a consultancy to design a pilot programme for testing suitable model(s) for a National Legal Aid Scheme. In its 2001 report (the Legal Education and Aid Programme: A Pilot Design) a framework for piloting legal aid and awareness in Kenya was proposed, but the same was not validated.
  8. After the 2002 general elections and with a new government and a ministry (Ministry of Justice and Constitutional Affairs) mandated to among other things to give policy direction in the area of access to justice was created. The ministry set up a weekly legal aid clinic where all the legal staff would offer legal aid to citizens every Wednesday. Due to overwhelming demand for the services and lack of a framework, the ministry in 2005 engaged the consultants who developed the 2001 report on the design for legal aid to review report and align it to the new mandate and the Executive Order No.2 of 2003. The report was revised, validated by stakeholders in 2006 and presented to the Ministry in 2007.
  9. As part of the implementation of the said report, in 2007 the Government established the National Steering Committee (NSC) to oversee the National Legal Aid (and Awareness) Programme (NALEAP) vide a Gazette Notice No. 11589 of 30th November 2007 with the mandate to among other things, facilitate access to justice for all and provide policy direction for the establishment of a national legal aid scheme in Kenya informed by lessons drawn from piloting six thematic projects. The membership of the said committee was drawn from major stakeholders both state and non-state agencies involved in the administration of justice.
  10. In April 2008, NALEAP was launched with the operationalization of the Secretariat while the six pilot projects were launched in 2009. The Programme adopted a partnership/collaborative approach, with partners drawn from MDAs, civil society organizations, professional organizations, community-based organizations and academic institutions. The six (6) pilot projects were established in Nairobi (2), Mombasa, Kisumu Nakuru, and Eldoret. The six pilots were:

(i) The Nairobi Children’s Court Pilot Project;

(ii) The Mombasa Capital Offences Pilot Project;

(iii) The Kisumu-Paralegal Services and Support Pilot Project;

(iv) The Nakuru Children Justice Pilot Project;

(v) The Moi University Law Clinic (Eldoret) Pilot Project; and

(vi) The Nairobi High Court Family Division Pilot Project.

  1. The Government successfully piloted the said projects between the years 2009- 2013, during which period over 25,000 Kenyans were granted legal aid. A summative evaluation of the programme was done in 2013 covering the piloting phase and the lessons drawn therefore informed the development of a draft Legal Aid Bill and a draft National Legal Aid and Awareness Policy. The Evaluation report recommended the scaling up of the National Legal Aid and Awareness Programme into a National Legal Aid Scheme.
  2. The promulgation of the Constitution of Kenya in 2010, particularly articles 48, 50 and the Fifth Schedule which obligates the state to ensure access to justice for all, further gave the necessary impetus for the establishment of a legal and institutional framework for legal aid in Kenya. The need to coordinate delivery of the legal aid services which was majorly offered by civil society organizations to ensure a coordinated and collaborative approach to legal aid and for purposes of standardization and quality assurance also informed the development of the legal and institutional framework.
  3. The process of developing the Legal Aid Act and the National Legal Aid and Awareness Policy was through a wide stakeholder consultation. The Legal Aid Act, 2016 was enacted on the 26th of April 2016 and came into force on the 10th May 2016. It establishes a legal and institutional framework for legal aid in Kenya by giving effect to Articles19(2), 48, 50 (2)(g) and (h) of the Constitution, establishing the National Legal Aid Service to provide for legal aid, and for the funding of legal aid in Kenya and for connected purposes.
  4. Hence, NLAS was established as a body corporate and as a successor of NALEAP and started functioning in 2017. The Board was inaugurated in April 2017 by the Attorney General.
  5. The objective of NLAS as provided in Section 3 of the Legal Aid Act, 2016 is to establish a legal and institutional framework to promote access to justice by;
  6. Providing affordable, accessible, sustainable, credible and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution;
  7. Providing a legal aid scheme to assist indigent persons to access legal aid;
  8. Promoting legal awareness;
  9. Supporting community legal services by funding justice advisory centres, education, and research; and;
  10. Promoting alternative dispute resolution methods that enhance access to justice in accordance with the Constitution.
  11. The mandate of NLAS is outlined in its functions as detailed in Section 7 of the Legal Aid Act 2016 and offers a wide range of professional and career development fields which law students need to be looking at constantly as

These include:

  1. Establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable;
  2. Advise the Cabinet Secretary on matters relating to legal aid in Kenya;
  3. Encourage and facilitate the settlement of disputes through alternative dispute resolution;
  4. Undertake and promote research in the field of legal aid, and access to justice with special reference to the need for legal aid services among indigent persons and marginalized groups;
  5. Take necessary steps to promote public interest litigation with regard to consumer protection, environmental protection and any other matter of special concern to the marginalized groups;
  6. Provide grants in aid for specific schemes to various voluntary social service institutions, for the implementation of legal aid services under this Act;
  7. Develop and issue guidelines and standards for the establishment of legal aid schemes by Non-Governmental Agencies;
  8. In consultation with the Council of Legal Education, develop programs for legal aid education and the training and certification of paralegals;
  9. Promote, and supervise the establishment and working of legal aid services in universities, colleges and other institutions;
  10. Take appropriate measures to promote legal literacy and legal awareness among the public and in particular, educate vulnerable sections of the society on their rights and duties under the Constitution and other laws;
  11. Facilitate the representation of persons granted legal aid under this Act;
  12. Assign legal aid providers to persons granted legal aid under this Act;
  13. Establish, coordinate, monitor and evaluate justice advisory centres;
  14. Coordinate, monitor and evaluate paralegals and other legal service providers and give general directions for the proper implementation of legal aid programs.
  15. Administer and manage the Legal Aid Fund; and
  16. Perform such other functions as may be assigned to it under this Act or any other written law
  17. In 2017 already, NLAS launched its first National Action Plan on Legal Aid 2017-2022, with the support of a development partner, IDLO. Furthermore, NLAS received substantial support from the European Union via the Programme for Legal Aid Empowerment and Delivery (PLEAD), which is due to end in June 2024.
  18. The culture of pro bono work gradually took root within the Kenyan legal profession. Many lawyers and law firms have been offering their services free of charge or at reduced rates to clients who cannot afford legal representation. Bar associations and professional bodies have been encouraging members to engage in pro bono work as part of their ethical responsibilities. Over time, legal aid services have expanded to cover a wide range of legal issues, including land disputes, family law matters, criminal defense, and human rights violations. Legal aid clinics have been established in urban and rural areas to provide accessible and community-based legal assistance.
  19. The provision of these services has grown beyond the role of only advocates and has now included legal aid providers and other players in the justice sector such Civil Society Organizations and Universities offering law like Moi University School of Law, and, with a legal aid clinic. A success story is drawn from Egerton University School of Law.

In Kenya, Pro Bono and legal aid has taken the following shapes among others;

  • Access to Justice:

Kenya, like many countries, faces challenges with access to justice, particularly for marginalized and economically disadvantaged populations in counties such as Mandera, Garissa, Tana River, Wajir, Marsabit among others. Pro bono work and legal aid help bridge this gap by providing free or low-cost legal services to individuals and communities in need. NLAS has so far established offices in five urban counties and is in the process of opening its offices in other marginalized counties with an aim of providing legal aid services to the indigent, marginalized and vulnerable communities.

  • Constitutional Mandate:

Kenya’s Constitution recognizes the right to legal representation and access to justice for all citizens. Legal aid services are mandated under Article 48 of the Constitution, which guarantees access to justice for all, including access to legal representation. Pro bono services align with this constitutional mandate by providing legal assistance to those who cannot afford it. This is a role that the Kenyan Judiciary has been taking very seriously by providing for pro bono scheme for advocates. The same will be transferred to NLAS once they have completed the drafting and passing into law of the Legal Aid Fund Regulations which is underway and being supported by the PLEAD Program.

  • NGO and Nonprofit Involvement:

Several non-governmental organizations (NGOs) and nonprofit organizations in Kenya are dedicated to providing legal aid services. These organizations often rely on pro bono contributions from lawyers and legal professionals to fulfill their missions. However, some such as PLEAD 1 & 2 get funding from the EU to run their services. These include NLAS and UNDP under the Amkeni Wakenya Initiative which has several NGOs being supported in different counties. They help in various legal matters, including family law, land disputes, human rights violations, and criminal defense.

  • Legal Aid Clinics:

Legal aid clinics are being established in various parts of Kenya to provide free legal services to vulnerable populations. These clinics are often run by law schools, legal aid organizations, or government agencies such as NLAS. They offer legal advice, representation, and advocacy on a range of issues, helping to empower individuals and communities to assert their rights and access justice drafting legal documents etc.

In closing, the provision of pro bono legal services and accessible legal aid stands as a beacon of hope in our pursuit of justice and equality. As we reflect on the power of our legal system to uplift the marginalized and protect the vulnerable, let us reaffirm our commitment to this noble cause

  • In the words of Mahatma Gandhi, ‘The best way to find yourself is to lose yourself in the service of others.’ Let us heed these words and recognize that our profession holds within it the power to transform lives and communities through the simple act of giving back. As law students, it is our mandate to help the vulnerable and indigent access justice.
  • As we leave here today, let us carry with us a renewed sense of purpose and dedication to serving those in need. Let us advocate tirelessly for the expansion of pro bono efforts and the enhancement of legal aid services, knowing that every act of kindness and every moment of advocacy brings us closer to a society where justice truly prevails.

Thank you to all those who tirelessly champion these causes, and may we continue to strive for a world where justice knows no bounds. Together, let us build a future where the principles of fairness, equality, and access to justice are upheld for generations to come.

Thank you!

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top